Gammett v. Storrs

• Decision Date: 15 June 1897
• Docket Number: 803
• Court: Utah Supreme Court
• Parties: JAMES E. GAMMETT, RESPONDENT, v. GEORGE A. STORRS ET AL., APPELLANTS

49 P. 642

15 Utah 336

JAMES E. GAMMETT, RESPONDENT, v. GEORGE A. STORRS ET AL., APPELLANTS

No. 803

Supreme Court of Utah

June 15, 1897

Appeal from the Fourth district court, Utah county. Hon. W. N Dusenberry, Judge.

Bill by James E. Gammett against George A. Storrs and Alexander Wilkins. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Bennett Harkness, Howat & Bradley and George L. Nye, for appellants.

Thurman & Wedgwood, for respondent.

Cited Waples Hom. and Ex., p. 2; Cook v. Higley, 10 Utah 229; 9 Am. & Eng. Enc. of Law, 424; Wright v. Westhermer, 28 P. 438; Nance v. Hill, 26 S.C. 227; Swandale v. Swandale, 25 S.C. 392; Bartlett v. Cattle, 63 Cal. 366; Barbiera v. Ramella, 23 P. 1086.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J:

This is an action to enjoin the defendants, the sheriff of Utah county and his deputy, from selling, under a writ of execution, certain real estate of the plaintiff, which he claims is exempt from execution by virtue of the homestead exemption laws.

The only material question presented on this appeal is whether, under section 3429, subd. 11, Comp. Laws Utah 1888, the real estate in controversy, not being the residence of the plaintiff or his family, nor in any manner appurtenant to, or used in connection with, their residence, nor selected by the plaintiff for a homestead, is exempt from execution. The court below, in accordance with the contention of the respondent, decided that the property was exempt, and enjoined its sale. Subdivision 11, so far as material to this decision, contains language as follows: "If the debtor be the head of a family, there shall be a further exemption of a homestead, to be selected by the debtor, consisting of lands, together with the appurtenances and improvements thereon, not exceeding in value the sum of one thousand dollars, for the judgment debtor, and the further sum of five hundred dollars for his wife, and two hundred and fifty dollars for each other member of the family. If the homestead selected by the debtor is of a greater value than is exempted under this section, it shall be optional with the judgment debtor to permit the same to be partitioned or to be sold, and to receive in money the value of the homestead as provided in this section. If the debtor so elect, the homestead may be sold as other lands are sold on execution, and, after paying the debtor the value of the homestead, the balance of the money shall be applied upon the judgment." It is insisted for the respondent that this is a statute of exemptions, and not of homestead, and that under its provisions the head of a family is entitled to an exemption out of any real property which he may own equal in value to the monetary limit specified therein, without reference to the family residence of the debtor.

We cannot concur in this position. It is true the statute does not constitute an independent or technical homestead law, and the term "homestead" implies some degree of exemption; but this may be said of every homestead law. The term "homestead," in legal parlance, possesses the quality of inalienability for the debts of the judgment debtor, if he be the head of a family, and, at the same time conveys the idea of a home place. Waples in his work on Homestead and Exemption, in section 1, defines it as "a family residence, owned, occupied, dedicated, limited, exempted, and restrained in alienability, as the statute prescribes." Possibly, this is a more restricted meaning of the term than that in which it was used in the statute under consideration, but it is the sense in which the word is generally used by courts and law writers. The meaning of the word "homestead," as used in our statute, evidently includes, not only the land whereon the family of the judgment debtor resides, but also any of his land of the limited value which he may have selected, or may select, for a home, although it may never have been actually occupied as the owner's place of residence. The idea of family residence seems to pervade the entire statute, and the judgment debtor cannot claim land removed from, and in no way connected with, the place where he resides, merely as an exemption, without any intention of using it as a place for a family residence, or in connection therewith. It is clear, from the context, that it was the intention of the legislature to preserve a...